Wage-Based Weighted H-1B Selection Process For The 2026 Lottery Implemented

On December 29, 2025, the U.S. Department of Homeland Security
(DHS) published a rule amending federal regulations
that govern the process by which the United States Citizenship and
Immigration Services (USCIS) selects foreign workers for the annual
H-1B visa lottery. Through the rule, DHS is implementing a weighted
H-1B selection process that will favor registrants with job
opportunities at a higher wage level. Effectively, this means that
H-1B registrants with job offers at higher salaries will have a
significantly greater chance of selection than entry-level
registrants and other registrants with lower wage offers. The
wage-based process is expected to reduce the number of entry-level
roles being selected in the H-1B lottery.

Each year, DHS allocates 85,000 new H-1B visas authorized by
Congress, reserving 20,000 H-1Bs for foreigners who have earned a
master’s degree at a qualifying U.S. educational institution.
Certain employers are exempt from the H-1B cap and may sponsor
foreign workers without being subject to the annual numerical
limitation. However, as the demand for cap-subject H-1B visas
consistently exceeds the annual allocation, USCIS uses a lottery to
select candidates. The H-1B registration window opens in March, and
USCIS typically announces selections on March 31. Under the
existing selection process, USCIS randomly chooses the 85,000
registrants, first selecting the 20,000 with U.S. master’s
degrees, followed by the remaining 65,000. Under this process,
registrants with a U.S. master’s degree had two opportunities
for selection, with the overall selection rate at approximately 30%
in recent years, while those without a United States master’s
degree had a selection rate below 25%.

The new rule replaces the random lottery selection with a
weighted H-1B selection process based on the wage level assigned to
the salary offered to the H-1B worker. To understand how this rule
changes the lottery, it is important to understand the wages an
employer must pay H-1B workers selected in the lottery. Employers
must pay H-1B workers the higher of the “prevailing wage”
(the average wage all employers in the area pay for the job) or the
“actual wage” (what the employer pays its employees in
the area) for the role. The prevailing wage for an H-1B position is
calculated based on the occupation and the employer’s
requirements for the position. The U.S. Department of Labor’s
wage level framework consists of four wage levels, meant to reflect
the role’s seniority and complexity, evaluated by comparing the
normal minimum education and experience requirements, specialized
skills, and supervisory responsibilities for the position with the
employer’s requirements for the position.

Under the new weighted selection process, the chance of
selection in the H-1B lottery will increase for employers offering
above-market wages for lower-level positions, and offering market
wages for higher-level positions. Specifically, under the new rule,
H-1B registrations would be entered into the lottery pool as
follows:

• Employer’s wage offer meets average wage for entry-level
  role (“Level I” or 17^th percentile of wages
  for the occupation): entered into the lottery pool 1 time.
• Employer’s wage offer meets average wage for somewhat
  experienced role (“Level II” or 34^th
  percentile of wages for the occupation): entered into the lottery
  pool 2 times.
• Employer’s wage offer meets median wage for the role
  (“Level III” or 50^th percentile of wages for
  the occupation): entered into the lottery pool 3 times.
• Employer’s wage offer meets average wage for very
  experienced role (“Level IV” or 67^th
  percentile of wages for the occupation): entered into the lottery
  pool 4 times.

With the change to the weighted H-1B selection process, job
opportunities at higher wage levels will benefit from a
significantly increased probability of selection. The job offers
that will be advantageous may be for more senior roles, or may be
for junior roles at employers who pay above-market salaries. The
probability of being selected will change from approximately 30%
across all wage levels to the following:

• Level I: 15.29%
• Level II: 30.58%
• Level III: 45.87%
• Level IV: 61.26%

Example with Two Similar
Employers

Employers will need to specify the offered wage, the wage level
that the offered wage matches, the occupational classification, and
the area of intended employment for the offered position in the
H-1B registration. If a registration is selected in the lottery,
the job offer details in the filed petition will need to be
identical to those reflected in the registration.

Employers who sponsor H-1B workers for entry-level positions,
including recent college graduates and early-career professionals,
can expect increased challenges in securing work authorization for
these employees unless they pay significantly above-market wages.
Further, foreign graduates will need to effectively explore visa
alternatives once their post-completion optional practical training
(F-1 OPT) authorization runs out, as their chances for the H-1B
visa are likely to decrease.

The rule is set to go into effect on February 27, 2026, in time
for the upcoming Fiscal Year 2027 H-1B lottery. Our firm’s
guidance is to stay the course with existing H-1B cap planning
strategies and to evaluate whether your individual workforces will
be advantaged or disadvantaged by this change. While this
development is significant, key operational details and
implementation guidance will not be fully known until after
publication and further agency clarification. As with prior
regulatory changes affecting the H-1B program, additional insight
is expected to emerge over time. A legal challenge to the rule is
possible and could impact its timing, scope, or ultimate
implementation.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.